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REPORTABLE

IN THE SUPREME COURT OF INDIA     CIVIL ORIGINAL JURISDICTION

  WRIT PETITION (C)No.429 OF 2014

     JAFAR IMAM NAQVI                                  .......PETITIONER

VERSUS

ELECTION COMMISSION OF INDIA  ......RESPONDENT  

J U D G M E N T

DIPAK MISRA, J.

The petitioner, a practising advocate of this Court, as  

pro bone publico has preferred this writ petition with Article 32  

of the Constitution with the following prayers:

"a) Issue a writ of mandamus in public interest  or any other appropriate writ, order, direction,  commanding respondent to take stern action against  everyone and anyone found guilty as per law in  view  of  the  ongoing  activities  of  the  accused  politicians and political parties and to ensure  protection  of  the  security  of  Election  Staff  posted at Varanasi and of public at large of the  entire country;

b) Issue a writ of mandamus in public interest  or any other appropriate writ, order, direction  commanding Respondent to withdraw the recognition  given  to  such  political  parties  resorting  to  illegal activities and to cancel the candidature  of politicians found guilty before declaration the  Election Results.   

c) Pass  such  other  order  or  orders  as  this  Hon'ble Court may deem fit and proper in the facts  and circumstances of the case."

2. The basic assertions in the petition relate to speeches

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which have been delivered during the recently finished election  

campaign by various leaders of certain political parties and how  

they have the effect potentiality to affect the social harmony.  It  

is urged in the petition that these kind of hate speeches are  

totally unwarranted and can endanger the safety and security of  

public at large and undermine the structuralism of democratic body  

polity.   Various examples have been given and certain newspaper  

clippings  have  been  annexed.  In  view  of  what  we  are  going  to  

finally say, we are not inclined to advert to the same.

3. The petitioner appearing in person has submitted  that in  

view  of  such  hate  speeches  by  political  leaders  when  the  

equilibrium of the society is disturbed and there is a possibility  

of creating a crack in the multi-faceted fabric of the society, it  

is  the  constitutional  duty  of  this  Court  to  issue  a  writ  or  

mandamus to the Election Commission of India to take appropriate  

steps.   That  apart,  the  petitioner-in-person  has  also  made  

submissions for issue of a mandamus to cancel the recognition of  

such political parties and also to protect the liberty and safety  

of the citizens.   

4. The seminal question that emanates for consideration is  

whether the Court in exercise of power under Article 32 of the  

Constitution should enter into the arena of effect and impact of  

election speeches rendered during the election campaign in a public  

interest litigation.  The petitioner commenced his arguments by  

stating that since the infancy of the Constitution, this Court has  

not declined to declare a law wherever it has found that it is

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unconstitutional.  In  that  regard,  he  has  commended  us  to  the  

decision in  The State of Bihar vs. Sir Kameshwar Singh1.  On a  

careful  reading  of  the  said  decision,  we  find  that  the  issue  

decided therein has nothing to do with the case of the present  

nature.

5. Learned counsel has ambitiously submitted relying on the  

judgment of this Court in Smt.Nilabati Behera alias Lalita Behera  

vs. State of Orissa and others2 wherein the Court expanded the  

concept  of  public  remedy  where  there  had  been  violation  of  

fundamental rights and further opined that the concept of sovereign  

immunity would be not applicable.  He has drawn our attention to  

paragraph 19 of the said judgment which reads as under:

"We respectfully concur with the view that  the  court  is  not  helpless  and  the  wide  powers  given to this Court by Article 32, which itself is  a  fundamental  right,  imposes  a  constitutional  obligation on this Court to forge such new tools,  which may be necessary for doing complete justice  and enforcing the fundamental rights guaranteed in  the  Constitution,  which  enable  the  award  of  monetary compensation in appropriate cases, where  that is the only mode of redress available. The  power available to this Court under Article 142 is  also  an  enabling  provision  in  this  behalf  The  contrary view would not merely render the court  powerless  and  the  constitutional  guarantee  a  mirage  but  may,  in  certain  situations,  be  an  incentive to extinguish life, if for the extreme  contravention the court is powerless to grant any  relief against the State, except by punishment of  the  wrongdoer  for  the  resulting  offence,  and  recovery  of  damages  under  private  law,  by  the  ordinary  process.  It  the  guarantee  that  deprivation of life and personal liberty cannot be  made except in accordance with law, is to be real,  the  enforcement  of  the  right  in  case  of  every  contravention  must  also  be  possible  in  the  constitutional scheme, the mode of redress being  

1   AIR 1952 SC 252 2  AIR 1993 SC 1960

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that which is appropriate in the facts of each  case. This remedy in public law has to be more  readily available when invoked by the have not,  who  are  not  possessed  of  the  wherewithal  for  enforcement of their rights in private law, even  though its exercise is to be tempered by judicial  restraint to avoid circumvention of private law  remedies, where more appropriate."

6. The facts of the said case are absolutely different since  

it was stated in the said case that it is within the power of the  

Court  to  formulate  new  tools  which  may  be  necessary  for  doing  

complete  justice  and  for  enforcement  of  fundamental  rights  

guaranteed  in  the  Constitution,   when  there  is  violation  of  

fundamental rights enshrined under Article 21 of the Constitution.  

Thus, the said decision has no applicability to the case in hand.  

That apart, the issue related to grant of compensation.  

7. Learned counsel has also drawn our attention to Vishaka  

and others vs. State of Rajasthan and others3 wherein the Court  

taking note of the sexual harassment at workplace and keeping in  

view the enforcement of the basic human rights or gender equality  

guaranteed against sexual harassment and more particularly against  

sexual harassment at work places issued guidelines and directed  

that the said guidelines and norms should be strictly followed and  

further observed that the same would be binding and enforceable in  

law.  The  other  decisions  which  have  been  cited  by  the  learned  

counsel are  Daryo and others vs. State of U.P. and others4, Union  

3  AIR 1997 SC 3011

4  AIR 1961 SC 1457

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of  India  and  another  vs.  Raghubir  Singh  (Dead)  by  Lrs.  etc.,5  

Kanusanyal  vs.  District  Magistrate,  Darjeeling  and  others6 and  

M.C.Mehta and another Union of India & Ors. vs. AIR 1987 SC 1086.7  

On a perusal of the aforesaid decisions, we find that they pertain  

different  field  altogether.   Hence,  the  principle  stated  in  

Vishaka's case and the principles laid down in other decisions are  

really not attracted to the present case.   

8. Lastly, the learned counsel has brought to our notice a  

recent three-Judge Bench decision of this Court in Pravasi Bhalai  

Sangathan vs. Union of India and others8 which pertains to the  

legal remedy because of hate speeches pertaining to inter state  

migrants.  The Court adverted to various submissions advanced at  

the Bar and took note of certain decisions of the Supreme Court of  

Canada, dictionary meaning of `hate speeches' and the offences for  

the  hate  speeches  in  Indian  Penal  Code,  the  Representation  of  

People  Act,  1951,  Code  of  Criminal  Procedure,  1973,  Unlawful  

Activities (Prevention) Act, 1967, Protection of Civil Rights Act,  

1955, Religious Institutions (Prevention of Misuse) Act, 1980 and  

thereafter Sections 124A, 153A, 153B, 295-A, 298, 505(1), 505(2) of  

Indian Penal Code, 1860 and eventually held as follows:

"21. While explaining the scope of Article 141 of  the  Constitution,  in  Nand  Kishore  v.  State  of  Punjab,  (1995)  6  SCC  614,  this  Court  held  as  under:  

5  AIR 1989 SC 1933

6  AIR 1973 SC 2684

7   AIR 1987 SC 1086 8 (2014) 3 Scale 552

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“Their Lordships decisions declare the  existing law but do not enact any fresh  law, is not in keeping with the plenary  function  of  the  Supreme  Court  under  Article 141 of the Constitution, for the  Court is not merely the interpreter of  the  law  as  existing,  but  much  beyond  that. The Court as a wing of the State  is by itself a source of law. The law is  what the Court says it is.”

22. Be  that  as  it  may,  this  Court  has  consistently  clarified  that  the  directions  have  been issued by the Court only when there has been  a total vacuum in law, i.e. complete absence of  active  law  to  provide  for  the  effective  enforcement of a basic human right. In case there  is  inaction  on  the  part  of  the  executive  for  whatsoever reason, the court has stepped in, in  exercise  of  its  constitutional  obligations  to  enforce the law. In case of vacuum of legal regime  to deal with a particular situation the court may  issue guidelines to provide absolution till such  time as the legislature acts to perform its role  by enacting proper legislation to cover the field.  Thus, direction can be issued only in a situation  where the will of the elected legislature has not  yet been expressed.

25. It is desirable to put reasonable prohibition  on  unwarranted  actions  but  there  may  arise  difficulty  in  confining  the  prohibition  to  some  manageable  standard  and  in  doing  so,  it  may  encompass all sorts of speeches which needs to be  avoided  .  For  a  long  time  the  US  courts  were  content in upholding legislations curtailing “hate  speech” and related issues.  However, of lately,  the courts have shifted gears thereby paving the  way  for  myriad  of  rulings  which  side  with  individual  freedom  of  speech  and  expression  as  opposed  to  the  order  of  a  manageable  society.  [See:  Beauharnais  v.  Illinois,  343  U.S.  250  (1952);  Brandenburg  v.  Ohio,  395  U.S.  444  (1969); and R.A.V. v. City of St. Paul, 112 S. Ct.  2538 (1992).

9. Thereafter, the Court suggested as follows:

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"However, in view of the fact that the Law  Commission has undertaken the study as to whether  the Election Commission should be conferred the  power  to  de-recognise  a  political  party  disqualifying it or its members, if a party or its  members  commit  the  offences  referred  to  hereinabove, we request the Law Commission to also  examine the issues raised herein thoroughly and  also to consider, if it deems proper, defining the  expression “hate speech” and make recommendations  to  the  Parliament  to  strengthen  the  Election  Commission to curb the menace of “hate speeches”  irrespective of whenever made."

10. The  petitioner  has  submitted  that  this  Court  being  the  

guardian of the Constitution is obligated to issue notice, call for  

the response and issue appropriate directions.  Be it stated, the  

Election  Commission  might  have  taken  note  of  it  and  initiated  

certain action.  The matter of handling hate speeches could be a  

matter of adjudication in an appropriate legal forum and may also  

have  some  impact  in  an  election  disputes  raised  under  the  

Representation of People Act, 1951.  Therefore, to entertain a  

petition as a public interest litigation and to give directions  

would be inappropriate. We have said so in view of the judgments in  

Manohar  Joshi  vs.  Nitin  Bhaurao  Patil  and  another9 and  

Prof.Ramchandra G.Kapse vs. Haribansh Ramakbal Singh10.   

11. Before  parting  with  the  case,  it  may  be  stated  that  

public interest litigation was initially used by this Court as a  

tool to take care of certain situations which related to the poor  

and under-privileged who were not in a position to have access to  

the Court.  Thereafter, from time to time, the concept of public  

9. (1996) 1 SCC 169

10.(1996) 1 SCC 206

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interest  litigation  expanded  with  the  change  of  time  and  the  

horizon included the environment and ecology, the atrocities faced  

by individuals in the hands of the authorities, financial scams and  

various  other  categories  including  eligibility  of  the  people  

holding high offices without qualification. But a public interest  

litigation  pertaining  to  speeches  delivered  during  election  

campaign, we are afraid, cannot be put on the pedestal of a real  

public interest litigation.  There are laws to take care of it.  In  

the name of a constitutional safeguard entering into this kind of  

arena,  in  our  convinced  opinion,  would  not  be  within  the  

constitutional parameters.

12. In the result, we are not persuaded, despite the adroit labour  

and vehement arguments by the petitioner-in-person to issue notice  

and accordingly, the writ petition, stands dismissed in limine.   

               ...........................J.          (DIPAK MISRA)  

                 ...........................J.          (N.V. RAMANA)

NEW DELHI; MAY 15, 2014.

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ITEM NO.2               COURT NO.5             SECTION PIL

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                   WRIT PETITION(C)NO.429 OF 2014

JAFAR IMAM NAQVI                                      PETITIONER(S)

                VERSUS

ELECTION COMMISSION OF INDIA                          RESPONDENT(S)

(With appln.(s) for seeking permission to appear and argue the  petition by the petitioner-in-person)

Date: 15/05/2014  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE DIPAK MISRA         HON'BLE MR. JUSTICE N.V. RAMANA

For Petitioner(s) Petitioner-in-person                      

For Respondent(s)

          UPON hearing counsel the Court made the following                                O R D E R  

The writ petition, stands dismissed in limine in terms of  

the signed judgment.

(Satish K.Yadav)            (Renuka Sadana)    Court Master                 Court Master

(Signed reportable judgment is placed on the file)